¶1In the Supreme Court of Georgia
¶2 Decided: June 21, 2023
¶3 S23A0531. ROUNTREE v. THE STATE.
¶4 ELLINGTON, Justice.
¶5 Quavion S. Rountree appeals his conviction for malice murder
¶6in connection with the shooting death of Anahitdeep Singh Sandhu.1
¶7 1 Sandhu was killed on April 28, 2019. On May 7, 2019, a Houston County grand jury indicted Rountree and Delvin Ross for malice murder, felony murder, and aggravated assault. Rountree was tried separately before a jury from June 21 to 23, 2021, and was found guilty on all counts. As of the time of Rountree’s trial, the charges against Ross had not been resolved. On July 7, 2021, Rountree was sentenced to serve life in prison for malice murder. With respect to the remaining counts, the State accurately observes that the trial court purported to merge the felony murder count into the count of malice murder, but the felony murder count was actually vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 372 (4) (434 SE2d 479) (1993); Calmer v. State, 309 Ga. 368, 368 n.1 (846 SE2d 40) (2020). And as the District Attorney correctly recognizes, although the trial court purported to merge the aggravated assault count into the felony murder count, the aggravated assault count actually merged into the malice murder count for sentencing. See Malcolm, 263 Ga. at 373-374 (5); Calmer, 309 Ga. at 368 n.1. Rountree filed a timely motion for a new trial, which he amended on March 24, 2022. After a hearing on October 4, 2022, the trial court denied the amended motion for new trial on November 8, 2022. Rountree filed a timely notice of appeal, and the case was docketed in this Court to the April 2023 term and submitted for a decision on the briefs. Rountree contends that the trial court erred in failing to charge the
¶8jury on voluntary manslaughter and on mutual combat. Because
¶9Rountree has failed to carry his burden of showing plain error, we
¶10affirm.
¶11 The evidence submitted at trial shows the following. 2 On April
¶1228, 2019, Sandhu and his fellow United States Marine, Desmen
¶13Worley, were on furlough, visiting Worley’s hometown and staying
¶14at Grimaldi Miro’s apartment in the same apartment complex where
¶15Rountree lived. That afternoon, Sandhu and Miro walked to
¶16Rountree’s apartment for the purpose of trading a prescription
¶17medication containing codeine for ecstasy pills. When Rountree said
¶18that he did not have any pills, all of them walked out of the
¶19 2 Rountree makes a passing, one-sentence request that this Court review the sufficiency of the evidence. However, he never argues or even asserts that the evidence supporting his conviction was insufficient. Thus, Rountree has failed to carry his burden on appeal of showing that the evidence presented at trial was insufficient to support his conviction. See Charles v. State, 315 Ga. 651, 654-655 (2) (884 SE2d 363) (2023) (holding that the appellant had not carried his burden of showing that the evidence was insufficient, because he had “not articulated why he contends that the trial evidence was insufficient to support his convictions, much less formulated an argument showing that the trial evidence failed to prove an essential element of any crime charged beyond a reasonable doubt”). 2 apartment. Rountree said that he considered Sandhu a “threat,”
¶20although Miro did not see Sandhu flash a gun or do anything that
¶21was threatening. Sandhu and Miro then walked back to Miro’s
¶22apartment.
¶23 Rountree called Delvin Ross, walked away from his apartment,
¶24and told Miro and others that he “felt like doing something stupid.”
¶25They could tell Rountree was “angry” and “upset,” they tried to
¶26reason with him and calm him down, and they told him that Sandhu
¶27“didn’t mean . . . any type of disrespect.” Ross drove up and got out
¶28of his car, and Rountree grabbed a pistol from Ross and chambered
¶29a round. When Ross and Miro tried to hold Rountree back, he
¶30threatened to shoot one of them.
¶31 Rountree went to Miro’s apartment, and Sandhu came out and
¶32stood in the doorway. Rountree pointed Ross’s pistol at Sandhu and
¶33told him to turn over the gun and the prescription drug that he had.
¶34When Sandhu lowered his hands to reach for the gun in his
¶35waistband, Rountree shot him several times, fatally wounding him.
¶36Several eyewitnesses testified that Rountree shot Sandhu, and they
¶37 3 gave other testimony consistent with the preceding summary of the
¶38evidence.
¶39 Rountree testified that he was in his apartment with his two
¶40children and his fiancée when Miro and Sandhu came over; that he
¶41saw Sandhu had a firearm; that he feared for his life and his
¶42children’s lives; that he ushered Miro and Sandhu outside where
¶43Sandhu used racial epithets and asked Rountree if he “want[ed] to
¶44do this out here or inside,” which Rountree took as a threat; that he
¶45thought they were trying to rob him; that he called Ross and, when
¶46Ross arrived, took the pistol from him and chambered a round; that
¶47he went to tell Sandhu to stay away from his apartment; and that
¶48he shot Sandhu after he saw Sandhu reach for his gun. Based on
¶49this testimony, the jury was charged on the defense of justification
¶50at Rountree’s request.
¶51 1. Rountree contends that the trial court abused its discretion
¶52by failing to charge the jury on mutual combat and on voluntary
¶53manslaughter. He concedes that the omission of the mutual-combat
¶54instruction can be reviewed for plain error only, but contends that
¶55 4 he preserved for ordinary appellate review his enumeration
¶56pertaining to the voluntary-manslaughter instruction. He has not,
¶57however, so we review both contentions for plain error only.
¶58 Rountree argues that his objection at the charge conference to
¶59the omission of his requested instruction on voluntary manslaughter
¶60was sufficient to preserve the issue for ordinary appellate review.
¶61However, “[o]bjections at a charge conference do not suffice to
¶62preserve objections to the charge as subsequently given.” Carruth v.
¶63State, 290 Ga. 342, 347 (6) (721 SE2d 80) (2012). In this case,
¶64Rountree made no objection when the trial court finished reading
¶65the charge to the jury. Instead, after the trial court excused the jury
¶66and asked if the parties had objections to the charge, defense counsel
¶67answered, “No, your Honor.” Because of Rountree’s failure to make
¶68any objection to the charge as given, both his contention relating to
¶69the trial court’s omission of his requested instruction on voluntary
¶70manslaughter and his contention regarding omission of an
¶71instruction on mutual combat can be reviewed only for plain error.
¶72See OCGA § 17-8-58 (a), (b); Davis v. State, 312 Ga. 870, 873 (2) (866
¶73 5 SE2d 390) (2021) (Failure to charge on voluntary manslaughter was
¶74reviewed only for plain error where the appellant “made a written
¶75request for a jury charge on voluntary manslaughter” and argued
¶76the point at the charge conference but “did not object to the omission
¶77of the charge after the trial court instructed the jury.”); Anderson v.
¶78State, 309 Ga. 618, 622-623 (3) (847 SE2d 572) (2020) (Where the
¶79appellant “did not request the charge in writing and made no
¶80objections to the instructions ultimately given to the jury . . . , his
¶81contention relating to the failure of the trial court to give the charge
¶82in this instance is reviewed only for plain error.”). And where “an
¶83alleged error regarding a jury instruction is not affirmatively
¶84waived,” reversal is not authorized under plain error review unless
¶85“the instruction was erroneous, the error was obvious, the
¶86instruction likely affected the outcome of the proceedings, and the
¶87error seriously affects the fairness, integrity, or public reputation of
¶88judicial proceedings.” Davis, 312 Ga. at 873-874 (2).
¶89 2. As for Rountree’s contention that the trial court erred by
¶90failing to charge the jury on voluntary manslaughter, he has shown
¶91 6 no error, much less plain error.
¶92 A person is guilty of voluntary manslaughter if he “causes the
¶93death of another human being under circumstances which would
¶94otherwise be murder” and “acts solely as the result of a sudden,
¶95violent, and irresistible passion resulting from serious provocation
¶96sufficient to excite such passion in a reasonable person[.]” OCGA §
¶9716-5-2 (a). “Even slight evidence showing that the victim seriously
¶98provoked the defendant requires the trial court to give a requested
¶99charge on voluntary manslaughter.” Behl v. State, 315 Ga. 814, 816
¶100(1) (885 SE2d 7) (2023) (citation and punctuation omitted).
¶101 In support of his argument that the evidence required the trial
¶102court to instruct the jury on voluntary manslaughter, Rountree
¶103relies primarily on his own testimony that he was fearful for the
¶104lives of his children and himself because Sandhu brought a weapon
¶105to his home. But “neither fear that someone is going to pull a weapon
¶106nor fighting are the types of provocation that demand a voluntary
¶107manslaughter charge.” Behl, 315 Ga. at 816 (1) (citation and
¶108punctuation omitted).
¶109 7 Rountree also testified that Sandhu used threatening words
¶110and racial epithets. But “angry statements alone ordinarily do not
¶111amount to ‘serious provocation’ within the meaning of OCGA § 16-
¶1125-2 (a). To put it simply, words alone generally are not sufficient
¶113provocation to excite the passion necessary to give rise to voluntary
¶114manslaughter.” Merritt v. State, 292 Ga. 327, 331 (2) (737 SE2d 673)
¶115(2013) (citation and punctuation omitted). See also Ramirez v. State,
¶116307 Ga. 550, 553 (2) n.2 (837 SE2d 328) (2019) (stating that it is a
¶117longstanding part of Georgia’s law of voluntary manslaughter that
¶118“provocation by words, threats, menaces or contemptuous gestures
¶119shall in no case be sufficient to free the person killing from the guilt
¶120and crime of murder”) (citation and punctuation omitted). Indeed,
¶121“words alone, regardless of the degree of their insulting nature, will
¶122not in any case justify the excitement of passion so as to reduce the
¶123crime from murder to manslaughter when the killing is done solely
¶124on account of the indignation aroused by use of opprobrious words.”
¶125Behl, 315 Ga. at 816 (1) (citation and punctuation omitted). Cf. Ware
¶126v. State, 303 Ga. 847, 850 (III) (815 SE2d 837) (2018) (recognizing
¶127 8 the “limited exception to this rule for words informing a defendant
¶128of adulterous conduct”) (citation and punctuation omitted). The
¶129threatening and insulting words that Rountree testified were used
¶130by Sandhu, no matter how menacing or offensive they were to
¶131Rountree, were still only words, regardless of Rountree’s ultimate
¶132violent response.3 See Hudson v. State, 308 Ga. 443, 446 (2) (a) (841
¶133SE2d 696) (2020) (“[The victim’s] use of a crude phrase, [i.e., calling
¶134the defendant a ‘mother f**ker’ after his mother recently had died,]
¶135no matter how offensive to [the defendant], was still only words; [the
¶136defendant’s] violent reaction to those words does not change the fact
¶137that they were only words.”).
¶138 Accordingly, there was no evidence whatsoever of serious
¶139provocation sufficient to excite a sudden, violent, and irresistible
¶140passion in a reasonable person such that Rountree would have been
¶141 3 Rountree does not argue that the combined effect of Sandhu’s alleged words and his possession of a weapon constituted the requisite serious provocation. Moreover, given that the fear that someone will pull a weapon is not a “type[ ] of provocation that demand[s] a voluntary manslaughter charge,” Behl, 315 Ga. at 816 (1), we conclude that evidence of Sandhu’s mere possession of a gun did not transform his alleged words into a serious provocation. 9 entitled to a jury instruction on voluntary manslaughter. See id. And
¶142Rountree, therefore, has failed to meet the plain-error test.
¶143 3. With respect to Rountree’s contention that the trial court
¶144erred by failing to instruct the jury on mutual combat, he merely
¶145“adopts” his previous “argument and citation of authority” regarding
¶146the omission of a voluntary manslaughter charge. However,
¶147Rountree never explains why it was error, much less plain error, not
¶148to charge specifically on mutual combat. Indeed, the evidence
¶149presented at trial, including that which Rountree argues in support
¶150of his claim of error in the omission of a voluntary manslaughter
¶151instruction, does not show “a willingness, a readiness, and an
¶152intention upon the part of both parties to fight” and therefore does
¶153not require a charge on mutual combat. Tidwell v. State, 312 Ga.
¶154459, 463 (1) (863 SE2d 127) (2021) (citation and punctuation
¶155omitted) (holding that the trial court did not err in denying a request
¶156to charge on mutual combat where there was “no evidence of an
¶157agreement, willingness, or readiness to fight between [the victim]
¶158and any of his attackers”). See also Williams v. State, 309 Ga. 212,
¶159 10 217-218 (2) (845 SE2d 573) (2020) (“Evidence of self-defense does not
¶160support a jury instruction on mutual combat as a basis for voluntary
¶161manslaughter.”); Venturino v. State, 306 Ga. 391, 398 (3) (830 SE2d
¶162110) (2019) (Appellant “points to no record evidence that he and [the
¶163victim] intended to engage in mutual combat, and we can find
¶164none.”). Thus, Rountree has failed to carry his burden on appeal of
¶165showing plain error. See Blackwell v. State, 302 Ga. 820, 823 (2) (809
¶166SE2d 727) (2018) (“The appellant has the burden of showing a clear
¶167or obvious error and further making an affirmative showing that the
¶168error probably did affect the outcome below.”).
¶169 Judgment affirmed. All the Justices concur.
¶170 11